September 4, 2013

I am always looking for notable and interesting modern cases to use with my 1L Criminal Law class when covering the topic of causation. Thanks to this local story, headlined "Former West Palm Beach doctor could face death penalty in patients' deaths," it looks like Florida prosecutors not only have presented me with a good classroom candidate, but also are talking up a possible punishment that could ensure the case garners national attention. Here are the details:

State prosecutors have filed court documents announcing their intent to seek the death penalty against a former West Palm Beach doctor facing two counts of first-degree murder for the overdose deaths of his patients.

Authorities with the state attorney's office said Tuesday they have not made a final decision about whether to pursue the ultimate punishment for former West Palm doctor John Christensen, 61, but want to keep that option open. The case will go before the office's death penalty committee, which is expected to review it and decide whether to pursue the penalty within the next month, Chief Assistant State Attorney Brian Fernandes said.
"This is a case that's potentially eligible for the death penalty," he said. "We want to make sure that we preserve our rights."

If the state does pursue a death sentence against the doctor, it would be highly unusual. Just a handful of Florida physicians have faced homicide charges for the overdose deaths of their patients, and the majority have been manslaughter cases.

West Palm Beach defense attorney Grey Tesh, who until last month represented Christensen, said he was surprised when the state sent its notice of intent to seek the death penalty. The doctor's new attorney, Richard Lubin, did not return a call seeking comment Tuesday.
"At least in Palm Beach County, I don't know of any doctor who has faced the death penalty on a case like this," Tesh said.

In 2002, West Palm Beach doctor Denis Deonarine became the first in the state to be indicted for first-degree murder in the death of a patient who was prescribed painkiller OxyContin. He was ultimately acquitted of first-degree murder charges, and released from prison in December, according to the state Department of Corrections. After the trial ended, one juror told the Sun Sentinel the jury ultimately believed the patient was responsible for his own death.

Christensen, who operated medical offices in West Palm Beach, Port St. Lucie and Daytona Beach, was arrested in July, after a two and-a-half year investigation that focused on the deaths of 35 of his patients. He's facing multiple charges, including the two counts of first-degree murder for prescribing oxycodone, methadone and anti-anxiety drugs to two patients who later overdosed....

Tesh said he expects it will be an uphill battle for the state to get a conviction against Christensen, making the death penalty irrelevant. He said it will be difficult to connect the deaths to him, noting that one of the patients had other substances in her system when she died.
"I would be surprised if he's convicted," Tesh said. "The evidence is just not going to be there, not to be proved beyond reasonable doubt."

Even without knowing much about the particulars of Florida homicide law, I share the perspective that state prosecutors are likely to face an uphill battle getting a first-degree murder conviction, let alone a death verdict, from a jury in this kind of case. But I also can identify lots of potential (utilitarian) benefits flowing from just a prosecutorial decision to talk up possible capital charges in this case.

As this very post reveals, simply mentioning the possibility of a death sentence ensures this case gets a lot more attention, and that attention should (and likely will) lead many more doctors in Florida and elsewhere to be at least a bit more careful when writing scripts for potent and potentially lethal prescription drugs. In addition, as in many other cases involving lots of human carnage, the prospect of capital charges might encourage a guilty defendant to plead guilty to lesser (and more fitting) charges. (Of course, some may view the potentially coercive impact of capital charges in a case like this to be an injustice, but I suspect prosecutors might well concluse that such charges are a fitting prescription for this kind of case.)

Comments

A student analysis would point to the absence of an actus reus and of a mens rea. Except for those deficits, the case is good. The prosecutor is trying to fool and waste the time of the court and should be sanctioned with all costs from his assets, not those of the taxpayer.

I have an extremely difficult time with any charges (let alone first degree murder) where the doctor did not actually physically administer the drug. I could possibly see manslaughter being viable if the provided instructions indicated a lethal dose but barring that I see any negligence on the part of the doctor being entirely offset by the guilty actions of the drug seeking patient.

Posted by: Soronel Haetir | Sep 4, 2013 11:22:24 AM

Apparently Florida has a Len Bias statute:
"782.04
(1)(a) The unlawful killing of a human being:
1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
[...]
3. Which resulted from the unlawful distribution of any substance controlled [...] by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user

is murder in the first degree and constitutes a capital felony."

So, Soronel Haetir and Supremacy Claus, in Florida they can charge him with first-degree murder.

2013 was apparenty the year for attempting to enforce exotic capital murder statutes, beginning with Ariel Castro.

Posted by: visitor | Sep 4, 2013 1:29:51 PM

Since 1974, the feds, and since 1994, fflorida, have passed intractable pain laws and regs, punishing doctors who fail to diagnose it, and fail to adequately treat it.

This doctor is being scapegoated by outcome bias. Therefore his Fifth Amendmentnt due process rights are being violated. He should file a Section 1983 claim against the prosecutor, in an Ex Parte Young claim.

I have not yet seen defense lawyers use these defenses, nor will I ever because they do want the prosecutor deterred in any way.

The case will go before the office's death penalty committee, which is expected to review it and decide whether to pursue the penalty within the next month, Chief Assistant State Attorney Brian Fernandes said. "This is a case that's potentially eligible for the death penalty," he said. "We want to make sure that we preserve our rights."

That is usually derogatory because he "lawyered up" to preserve his rights. Why isn't Nancy Grace raising hell with flaming nostrils?

Posted by: George | Sep 4, 2013 1:58:28 PM

Our prosecutorial idiots have lots of lust for blood and vengeance, all in the name of protecting society or "the children". Consider the case out of Alexandria, Virginia where the crime was aiding someone to deceive a lie-detector test:

I will no longer ever recite the pledge of allegiance. Government is the new religion, supported by the government, therefore debasing the first amendment of establishing itself as the one and only religion.

Posted by: albeed | Sep 4, 2013 4:06:50 PM

Visitor.

Prescriptions by a licensed doctor trying to comply with federal and state laws compeling the treatment of the subjective complaint of pain is the lawful distribution of pain medication. The failure to comply with these pain laws would be negligence per se and a federal and state crime.

Before getting agitated about 35 deaths, we need to know the denominator, such as 100, 1000, or 10,000 patients in the practice. We need to know their frailty and concurrent conditions. And the actual cause of death.

"Before getting agitated about 35 deaths, we need to know the denominator, such as 100, 1000, or 10,000 patients in the practice. We need to know their frailty and concurrent conditions. And the actual cause of death."

Ah, that is the beauty in being to be able to prosecute someone for even one death. The prosecutors do not care about the number of patients with excruciating and perhaps even intractable, terminal pain who may have been aided.

My mother was on fentanyl until her death several years ago. If anyone in LE tried to take her dose away, I would have physically beaten them to a pulp because they did not understand the value of being able to lead any kind of pain-limited, meaningful life near her end. She needed the pain medication to be able to perform the most basic human functions.

Posted by: albeed | Sep 4, 2013 5:12:07 PM

Abeed.

May God bless your mother and your family.

I recommend sending just the above last paragraph to the prosecutor of this case. I know it will make difference.

I was talking to a United Mine Worker's Union Rep about a law suit concerning polution. He said "I hope the son of a bitch dies cold and in the dark." Using the same rationale, Drug Warriors should die in pain.

Posted by: beth | Sep 4, 2013 11:13:35 PM

All physician prescribing is recorded. One should get a DEA Freedom of Information data on pain medication prescriptions after this death penalty announcement. Does the death penalty deter? Does the promise of the death penalty deter. I have explained how deterrence as a purpose of the death penalty violates Fifth Amendment Due process by killing someone for the purpose of scaring an unrelated person who may commit a speculative crime in the future. However, I will bet that opiate prescriptions have a significant drop, and perhaps a rebound in a few months, unless the story continues prominently in the news. If that is true, a class action of pain patients should be filed against the prosecutor, and the employer, for intentional interference with the contract between patient and doctor, violation of the ADAA, intentional infliction of emotional distress. If any judge does not accept the latter, claim, shoot him in the knees, and refuse him pain meds. To deter.